Functional efficacy can be achieved without disturbing statutory scheme, says affidavit

The Centre on Wednesday rejected in the Supreme Court the CBI’s demand for complete functional autonomy and vesting its Director with the powers of a government Secretary.

The CBI had said its Director should report directly to the Minister concerned as the agency faced hurdles at every stage of its administrative functioning. The Director also wanted powers to appoint special counsel/retainer for the agency.

In its affidavit in the coal scam case, the Centre said the non-statutory changes in the administrative arrangement sought by the CBI would have a deleterious effect on the criminal justice system.

On the CBI’s argument that the changes would ensure functional efficacy and insulate investigation from outside interference, the Centre said these objectives could be achieved without disturbing the present statutory scheme of government, with necessary checks and balances established at several levels.

The Centre said: “If the CBI Director reports directly to the Minister, the superintendence of the Minister would stand compromised and an independent layer of scrutiny would no longer be available. This would go against not only the legislative intent of the Delhi Special Police Establishment Act but also the democratic constitutional principle that the police or investigating agencies function under the administrative supervision of the executive.”

While considering the demands of a subordinate office like the CBI, the issue of parity with similarly placed organisations had to be kept in mind. It was not desirable to set a precedent which would create heartburns in similarly placed organisations, the Centre said.

On the contention that three police officers — the Secretary, RAW; the Secretary, Intelligence Services, and the Secretary, Security — were vested with the powers of a government Secretary, the affidavit said the functional requirements of these agencies could not be compared with those the CBI.

However, the files of these Secretaries were routed only through the Cabinet Secretary and not directly to the Minister concerned. One of the consequences of vesting the CBI Director with the ex-officio powers of a Secretary would be that he would be in a position to put up candidates for public prosecutors/assistant public prosecutors, and this would mean dilution of the principle of separation between the prosecuting and investigating agencies. This would seriously jeopardise the scheme of checks and balances envisaged in governance and have a deleterious effect on the criminal justice system, the Centre said.

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